In this paper, we study the relationship between the degree of political conflict / political polarization within a state and compliance with the country's constitution. While the economic approach to constitutions highlights their role in resolving conflict, recent work on the de jure / de facto distinction in relation to various constitutional rules suggests that political conflict could play a role in explaining the size and evolution of the gap between constitutional text and constitutional practice. We aim to provide a more in-depth analysis of these complex relationships both in the theoretical and empirical dimensions. The conclusions of our study may shed more light on the recent constitutional crises in several countries.
In this paper, we aim to contribute to the literature on the determinants of constitutional compliance, or the so-called de jure–de facto constitutional gap. Constitutional rules not only enable government, but they also constrain it, which is why some government actors would benefit from non-compliance. We study how personal traits of political leaders, specifically their education and their occupational and military background, affect constitutional non-compliance. These factors have been linked to various decisions of politicians, but not to their respect for the constitution. Analyzing the behavior of hundreds of political leaders over the course of two centuries, we find that military background and education are important predictors of constitutional compliance. This leads to the normative (and difficult) question of whether constitutions should set entry barriers for high political offices that take such leader characteristics into account.
There is overwhelming evidence suggesting that judges and court decision-making are sensitive to the political environment. In this paper, we explore one channel through which political alignment of the judges can manifest itself and verify whether political party support, expressed as a recommendation to the tribunal, is relevant for the allocation of judges to adjudication panels. Our specific example comes from the Polish Constitutional Tribunal and refers to the period 2005-2014. With respect to the mass of filed cases, we do not find that the allocation of judges to adjudication panels favored nominees of any political party. Our results, however, provide support for the strategic selection to adjudication panels in politically sensitive cases in the period 2011-2014. We find that nominees of the governing party were allocated to these panels more often than other members of the tribunal and that in these cases they had more voting power than in cases of lower political clout.
Should we consider civil society as a factor influencing the executive’s attitude towards the constitution? The essential goal of the study is to relate the matter of maturity or advancement of civil society to the compliance with constitutions by the executive. We apply numerous econometric tools to check whether the level of civil society in a state influences executive representatives’ obedience with the law placed at the highest rank in legal systems. Drawing upon the achievements in law & economics and constitutional economics, we consider in our model a variety of social and economic country features to fit the available literature on relationships between informal and formal institutions. We relate our conclusions on ties between politics and the law to previous findings covering the relevance of institutional and social surroundings for the shape of politics.